The medical malpractice insurance hard market - with tight underwriting standards and high rates - is finally over. How can I tell? With the exception of a few specialties, the policy renewals we’ve negotiated with incumbent carriers over the past several months have come in at expiring premium levels or lower. New capital flowing into the market is capturing market share the old-fashioned way: by cutting prices. For the first time in more than three years, we are able to offer medical groups a choice of competing carriers and lower premiums. Easier times are ahead, at least for a while.

However, I don’t see a softening of underwriting or pricing on the near horizon for those practicing OB/GYN, emergency medicine or telemedicine; for nursing home medical directors; or for a few other special-risk classes. I believe that for some additional time, these classes will have to look to riskretention groups and Lloyds of London markets for their protection (see box below).

Prices drive insurance market cycles

While the current softening bodes well for most specialties, no one can tell how long it will last. As we have seen over the past 25 plus years, price is the motor that drives most insurance market cycles. Underwriters would like you to believe that the premiums they charge are determined solely by actuarial analysis of verifiable data. In reality, if policy sales aren’t growing fast enough, underwriters manipulate the data to justify lowering their prices to more competitive levels. When this happens, loss ratios rise and the market cycle hardens as underwriters tighten their risk-selection standards and raise their rates.

Medical group administrators frequently ask how they can minimize or even avoid the financial hardship imposed by hard market cycles. I believe the best way is to build a relationship with a carrier that has a proven track record in medical malpractice underwriting and has an A.M. Best rating of A- or better.* As difficult as it may be, resist the temptation to change carriers solely to lower your group’s premiums, and stick with your carrier through thick and thin. Within reason, of course.

Use a qualified malpractice insurance carrier

There are two ways to find a qualified carrier. You can rely on the services of an experienced and reputable insurance broker or choose your insurance directly. Most state medical associations keep a list of active carriers and their phone numbers. Many carriers will work directly with doctors or the administrators. Be sure to check with A.M. Best and your state’s Department of Insurance if your carrier is not familiar to you.

Remember, medical malpractice insurance is not a commodity. Price is only one factor to consider when choosing a carrier.

* A.M. Best Company is the leading provider of ratings, news and financial data for the insurance industry worldwide. Its ratings are recognized as the benchmark for assessing the financial strength of insurance-related organizations and the credit quality of their obligations.

MADISON - Jacob and Freida Mast trusted certified professional midwife Chris Roberts to deliver five of their six children at their Wautoma home. But some members of Wisconsin’s established medical community probably wouldn’t trust Roberts to deliver an aspirin.

Like many people in Wisconsin’s Amish community, the Masts prefer the familiar home environment rather than delivery at a hospital, Jacob Mast said.

“She comes into the house and makes it a lot easier for us. She’s a friend more than a doctor,” Mast said.

But Roberts, who delivers about 60 babies a year for Amish couples, said she’d be forced out of business if some medical groups and regulators, including the Wisconsin Society of Obstetrics and Gynecology and state Medical Examining Board, have their way.

The society opposes a bill approved Tuesday by the Senate and Assembly that would allow midwives such as Roberts, who is not a nurse, to be certified by the state without meeting requirements faced by many other members of the medical profession.

The society wants, among other things, certified professional midwives to carry medical malpractice insurance and to have formal agreements with physicians to help in life threatening situations. Efforts to add those requirements to the bill, however, failed.

The bill will regulate certified professional midwives, who unlike certified nurse midwives are not now regulated in the state.

Gov. Jim Doyle is expected to sign the bill, said Dan Leistikow, a spokesman for the governor.

“Midwifery is an accepted practice in Wisconsin, and the governor thinks it’s certainly a good idea that there be basic standards in place to protect the lives of children and expecting mothers,” Leistikow said.

Certified professional midwives are critical to serving the Amish community in particular because nearly all certified nurse midwives work in hospitals, said Ingrid Andersson. Andersson is a Madisonbased certified nurse midwife who supports the bill as approved Tuesday. The medical malpractice requirement alone would add about $22,000 a year to the cost of doing business and put certified professional midwives, such as Roberts out of business, Andersson said.

But two registered nurses, Senate Minority Leader Judy Robson, DBeloit, and Leah Vukmir, R-Wauwatosa, said the bill failed to assure the certified midwives are qualified.

State certification could give consumers a false sense of integrity, Vukmir said, as she unsuccessfully tried to derail the bill with procedural maneuvers as about 120 members of the Amish community looked on in the Assembly gallery Tuesday night.

In written opposition to the bill, the state Medical Examining Board declared it “will increase the risk of serious harm, death and damages.”

To qualify for state certification under the bill, professional midwives will have to be approved by the North American Registry of Midwives. The registry requires attendance at 20 births, entry level courses and a national certification exam before being able to practice independently, according to the Wisconsin Medical Society.

By comparison, certified nurse midwives, as accredited by the American College of Nurse Midwives, must pass a national board exam after at least four years of specialized nurse training.

Virtually every hospital in the country uses an informed consent process–in one form or another–to document patients’ agreement to undergo medical procedures.

The bad news is that the majority of these processes do not meet their objectives. As a result, hospitals are left vulnerable to higher operating room costs due to delayed procedures, lost revenue from noncompliance with payer directives, inefficient use of human resources spent managing a paper-based process, and increased malpractice risks and judgments stemming from inadequate consents.

The solution? Many organizations have found that automating the informed consent process addresses each of these concerns as it improves the productivity of their operating rooms and enhances their bottom line.

Cracks in the Current Foundation

A recent study in the Archives of Surgery examined 540 consent forms in 157 hospitals. Only 26 percent addressed the four key elements of informed consent: benefits of treatment, risks, alternatives, and educational information (Bottrell et al., “Hospital Informed Consent for Procedure Forms: Facilitating Quality Patient-Physician Interaction,” Archives of Surgery, January 2000).

Further, more than two-thirds of patients in the United States do not receive any written information about their condition from their physicians. Other studies have shown that up to 75 percent of written consent forms are incomplete.

As studies underscore the importance of well-informed patients, agencies such as the Joint Commission on Accreditation of Healthcare Organizations and payers such as the Centers for Medicare and Medicaid Services are imposing and tightening guidelines relating to the informed consent process. In response, hospitals are making an effort to both improve and comply with the limited procedures they have in place. This effort involves searching for alternatives to adhere to informed consent guidelines and considering new technologies that automate this process.

Opportunities for Improvement

There are two informed consent processes typically employed by hospitals throughout the United States–large and small, public and private:

> Preparation of informed consent documents by individual providers. Often, these forms are hastily prepared and loaded with handwritten notes and medical jargon that can easily be used by plaintiff attorneys to demonstrate that the patient was not adequately informed about a procedure or operation.

> A one-size-fits-all approach: giving patients a generic form with “fill in the blank” components specific to the scheduled procedure.

The shortcomings that result from these abbreviated, nonstandardized processes can have a significant impact on a hospital’s financial health. These processes put both hospitals and physicians at increased risk for malpractice exposure. In 2004, the Archives of Ophthalmology published a study noting that inadequate informed consent was cited as the secondary cause in 90 percent of medical malpractice cases (Kiss et al., “Informed Consent and Decision Making by Cataract Patients,” Archives of Ophthalmology, January 2004). Depending on state law, failure to obtain adequate informed consent may place hospitals at risk for litigation ranging from medical negligence to battery.

These types of informed consent processes also can increase a hospital’s operating room costs.

Too often, paper-based consent documents get lost–and if the proper paperwork doesn’t accompany the patient into the holding area or the operating room, the procedure cannot take place. Once patients are sedated, they are no longer competent to sign a consent form. The consent should be obtained in an environment in which the patient has the opportunity to reflect on the information and ask appropriate questions.

These problems lead to delayed operations and lost revenue while the OR stands idle. A conservative estimate is that one minute of wasted OR time costs the hospital $20. With an average delay of 10 minutes for a lost or misplaced consent, that’s $200 for each case. Based on this estimate, as well as studies about the percentage of lost or misplaced informed consent documents, the annual cost associated with this problem could exceed $3.3 billion. This translates to an average cost per hospital of more than $580,000 each year.

Various groups have acknowledged the limitations of the traditional informed consent process and have taken steps to address these issues. States such as Texas and Louisiana have enacted laws that specify a minimum subset of risks that must be disclosed for select procedures in an attempt to ensure at least some level of standardization. The Leapfrog Group, which promotes improvements in patient safety by giving consumers data to make more informed hospital choices, includes questions about facilities’ informed consent processes in its annual quality and safety survey.

Automating the Informed Consent Process

Traditional informed consent processes provide hospitals with a significant performance improvement opportunity–improvements that might best be achieved through a technological approach. Computer-assisted informed consent processes encourage clinicians to treat informed consent as a process that occurs over time, rather than in a particular instance.

To avoid malpractice, nurses must first understand what Malpractice really is. In general, malpractice is negligence by a professional. Negligence is perhaps the most prevalent tort claim filed in civil court today. Most cases routed in negligence involve some type of personal injury as a result of another person’s failure to use “ordinary care.” Ordinary care is the degree of care that a reasonable and prudent person would exercise under the same or similar circumstances, Palsgraf v. Long Island Railroad Do., 1928. To establish a claim of ordinary negligence, a plaintiff must show that the defendant owed the plaintiff a duty, that he or she breached that duty, plus causation and damages.

In the health care setting, to establish a claim of malpractice against a nurse, the patient must demonstrate that the nurse owed the patient a duty, that the nurse breached that duty, that the nurse’s breach of duty caused harm to the patient, and that the patient suffered actual damages as a result. As with ordinary negligence, all four of these elements must be demonstrated to succeed in a case of malpractice against a nurse. The key difference is that a nurse will be held to a higher standard than that of “ordinary care.”

Nurses Owe a Duty to their Patients

The duty nurses owe to their patients arises out of the nurse-patient relationship. Once a nurse-patient relationship is formed, the nurse owes a duty to “take care” of the patient. At first glance, this seems simple enough. For example, when a nurse cares for a patient in the hospital, the nurse-patient relationship is obviously formed. However, when exactly does a relationship begin or duties arise? Is it when nurses agree to work a particular shift or take a particular assignment; when they show up for work, when they arrive at their unit, or to the patient’s home; after the nurse receives report; after the nurse reviews the chart; when the nurse first meets the patient; once the nurse assesses the patient? What if the patient is out of the room when the nurse’s shift begins? What if the patient has already been discharged and is merely waiting for a ride home? What if the nurse answers someone else’s call light? What about the nurse who simply answers a patient’s questions over the telephone? Depending on the circumstances, even this first element, whether a duty exists, may be disputed.

Breach of Duty: Falling below the Standard of Care

Once a nurse-patient relationship is formed, a nurse owes a duty to his or her patient. The duty in malpractice claims is the duty not to fall below the standard of care when providing nursing care to patients. In other words, a nurse must act as a reasonable and prudent nurse would under similar conditions and circumstances. Nurses with a higher level of skills or education will be expected to use their higher skills and knowledge when providing patient care.

This is the most important element in establishing or defending a claim for malpractice against a nurse. It is perhaps the one key area where nurses may avoid malpractice by doing their homework in advance. No matter what positions nurses hold, what locations they work in, or what types of nursing they practice, nurses must be aware of what the standard of care is to avoid committing malpractice.

Plaintiffs will attempt to establish the standard of care for the practice of nursing in a number of ways. In most cases, expert testimony will be required to establish and defend claims of malpractice by having other nurses testify to the generally accepted practice of nursing in a particular set of circumstances. Plaintiffs will also establish the standard of nursing care by evaluating several written sources including the employer’s policies and procedures or job descriptions, published guidelines by various nursing associations (for example, the American Nurses Association) and regulatory establishments (such as the Joint Commission on Accreditation of Healthcare Organizations or JCAHO) as well as the Nurse Practice Act provided by the state, just to name a few.

It is important for nurses to be cognizant of the fact that the Nurse Practice Act is a codified set of rules and regulations which nurses are expected to know and follow. The Nurse Practice Act dictates how nurses should behave (ie. Professional conduct) and the scope of practice nurses should adhere to. It is a set of standards which should not be violated. Violating the Nurse Practice Act not only opens the door to malpractice claims, but also puts nurses at risk for losing their professional licenses.

Incidentally, nurses should also keep in mind that the Nurse Practice Act is subject to change by the state legislature during each legislative session. Therefore, nurses should review their state’s Nurse Practice Act periodically to ensure they are up to date and continue working within their scope of practice.

A facility’s job descriptions and policy and procedure manuals may also be used to establish the standard of care for nurses. Most facilities have numerous manuals available for nurses which provide detailed instructions on how to perform a variety of nursing tasks. However, most nurses rarely take the time to review these documents either because they are already familiar with how to perform such tasks or because they were instructed by other nurses and do not feel the need to read more on the subject. Most nurses do not realize that if and when a nurse has been accused of malpractice, these manuals could be used by patients as a tool to establish what the standard of care should have been.

In 1992, Maryland’s highest court held that Maryland’s cap on noneconomic damages is constitutional. However, last year Wisconsin’s highest court struck down that state’s $350,000 statutory cap on noneconomic damages in medical malpractice cases. The Wisconsin Supreme Court held, in Ferndon v. Wisconsin Patients Compensation Fund, that limiting such damages violated the Equal Protection Clause of the Wisconsin Constitution.

Noneconomic damages cover nonpecuniary losses such as pain and suffering, disability and mental anguish. Neither Maryland nor Wisconsin limits the amount of damages that victims of medical negligence may recover for medical expenses, lost earnings or other economic damages.

The question, however, for Marylanders is whether the Wisconsin decision is an aberration or the beginning of a trend that could spread to Maryland, and the answer is a resounding “maybe.” On the one hand, the Wisconsin case shreds the arguments of malpractice damage cap proponents, one by one, and that shredding as described below is instructive. Moreover, two other states, Louisiana and Oregon, have already arguably followed Wisconsin’s lead. On the other hand, Maryland courts are, of course, not bound by Wisconsin, Oregon or Louisiana law.

In Ferndon, the Wisconsin Supreme Court observed that the damages cap treated medical malpractice victims who suffer more than $350,000 in noneconomic damages differently than victims who suffer less than $350,000 of such damages. The former receive only part of their damages, while less severely injured victims receive full compensation. As a consequence, younger claimants with serious injuries, who are likely to suffer from the effects of their injuries for many decades, are more likely to be undercompensated than older malpractice victims with shorter life expectancies.

Under Wisconsin law, the cap must also be shared by all claimants who suffer compensable losses as the result of an act of medical negligence. Therefore, patients who are married or who have children may have to share their $350,000 award with a spouse and children, while an injured patient who is single and childless may recover the entire $350,000.

Countervailing objectives

The court in Ferndon considered whether there were sufficient reasons to justify this unequal treatment.

First, the court determined that it was not reasonable to conclude that the cap reduced medical malpractice insurance premiums. To the contrary, a United States General Accounting Office study found no definitive correlation between caps on noneconomic damages and lower medical malpractice premium rates.

The court also concluded that the $350,000 noneconomic damages cap was not rationally related either to keeping the Wisconsin Patients Compensation Fund’s annual assessments to health care providers at a low rate, or to enabling the fund to operate on a sound financial basis. (Most Wisconsin health care providers are required to carry $1 million in medical malpractice liability insurance. In addition, Wisconsin has established a Patients Compensation Fund to provide liability coverage above that threshold.)

In fact, the court noted that the Wisconsin Patients Compensation Fund assessments had actually been decreasing over the years. Moreover, the fund had been fiscally sound and had flourished since its inception in 1975, even during periods when there was no cap.

The court then rejected the contention that lowering health insurance premiums would lower overall health care costs as those savings were passed on to patients. It cited studies that found that medical malpractice premiums account for less than 1 percent of total health care costs.

The court also found no evidentiary support for the proposition that a cap on noneconomic damages creates an environment in which health care providers are more likely to move into, or less likely to move out of, Wisconsin. According to the court, the available evidence instead indicated that health care providers do not decide to practice in a particular state based on that state’s cap on noneconomic damages.

Finally, the court addressed the issue of defensive medicine, namely doctors ordering expensive, although unnecessary, tests to defend themselves in malpractice cases by saying that they did everything possible for the patient. The court also rejected this contention, relying on government studies that found that defensive medicine cannot be measured accurately and does not contribute significantly to the cost of overall health care.

In response to the Ferndon decision, Wisconsin subsequently enacted a higher cap, $750,000, on noneconomic damages in medical malpractice cases, but that new enactment has not yet been tested in court.

Louisiana and Oregon

Subsequent to the Ferndon decision, courts in Louisiana and Oregon also struck down statutory damages caps. However, rather than conducting an equal protection analysis, those courts held that the damages caps violated their citizens’ state constitutional rights to pursue civil remedies for injuries.

Malpractice premiums are rising as professional liability insurers raise their rates, a study shows. Increasing frequency of claims, severity of injuries, and medical cost inflation are driving the rate increase. The study, conducted by the Medical Liability Monitor, a professional liability publication, surveyed 49 insurance companies nationwide for three medical specialties: internal medicine, general surgery, and obstetrics and gynecology Steve Nelson, vice president of underwriting at St.

Paul Companies, a malpractice insurer, says, “We began raising our rates in July 1998. Most companies now are filing a 5%-l0% rate increase.”

For CEOs, the rising cost of health care has become a serious challenge with no clear, agreed-upon solution in sight. Broader access to affordable health care was a pivotal issue in the presidential election, and it will certainly be near the top of governmental and business agendas in 2005.

U.S. health care expenditures are now greater than S1.7 trillion a year and represent more than 15 percent of GDP. Since the mid-1990s, the health care spending growth rate has steadily climbed, with an estimated increase of 9 percent last year. Health care insurance premiums are projected to grow more than 12 percent on average next year. Unfortunately, about 45 million Americans are uninsured.

Demographic trends present a major challenge. The average age of our population is increasing. As “baby boomers” reach retirement age, far fewer “generation Xers” will be available to replace them in the work force. As a result, there will be a larger number of people age 60 and older drawing on company-provided health benefits, or accessing private insurance and government programs.

It is time to begin to confront the underlying issues with resolve and ingenuity. We should start by recognizing that there is no more important goal, individually or collectively as a nation, than maintaining good health. It is important to consider both the costs and the value received from health care expenditures. There is value in the health care dollars that we spend because they allow innovation. In a statement before the Joint Economic Committee of the U.S. Congress, former Food and Drug Administration Commissioner Dr. Mark McClellan said, “The value of biomedical innovation to the U.S. equals the value of innovation in all other sectors of the American economy combined.”

To be sure, health care reform is a complex, difficult task with no easy fixes and plenty of economic, societal, legal and governmental land mines along the way, but a firm set of overarching principles should help guide our thinking and prioritize our actions:

1) Face the fact that health care spending will continue to rise in absolute dollars and as a percentage of GDP, and focus on increasing the value received for every dollar spent. When one considers the changing demographics, the large number of uninsured and underinsured and the people who are insured but still don’t receive the care they should, it is clear that spending will only increase as these issues are addressed. In the words of Harvard health care economist David Cutler, “We’re not going to spend less, but figuring out how to get more value out of our health care spending is going to be the big issue of the future.” The steps outlined below should help accomplish the goal of limiting the rate of increase of health care costs while ensuring better quality care for all Americans.

2) Allocate more resources to initiatives that encourage healthy lifestyles and prevent disease. For example, it is estimated that between 7 and 14 percent of national health care expenditures address problems associated with smoking (with significant additional costs tied to alcohol and drug abuse). Perhaps even more alarming, recent research shows that treatment for obese Americans accounted for 27 percent of the growth in overall health care spending between 1987 and 2001. Obesity is a significant contributing factor to many debilitating and expensive chronic illnesses, such as heart disease and diabetes. Keeping more people healthy, fit and out of the hospital for longer periods of time will free up needed funds to treat those who do become sick and require care. The new “Welcome to Medicare” preventive physical examination is one step in the right direction, but much more can and should be done.

3) Shift a larger proportion of health care expenditures toward direct patient care. It is estimated that about 31 cents out of every dollar spent goes toward administrative costs. That is twice the rate of some other countries and no successful business would accept that burden. We should set a goal of cutting the administrative percentage in half. Accomplishing this will require initial investments, such as moving to electronic health records, computerized prescriptions and the use of information technologies for claims processing and back-office functions, and a reduction in burdensome governmental regulations. Since more than 70 percent of health care expenditures support the treatment of chronic diseases, improved programs to prevent and better manage chronic disease must be implemented.

4) Require that all Americans have a basic health insurance package that includes catastrophic coverage. Government subsidies should be provided for those who cannot afford coverage. Insurance plans should encourage individuals to take more responsibility for their health and medical decisions, and proportionate copayments should exist so that everyone has an incentive to manage expenditures responsibly. Health insurance should also reward healthy behavior, as is the case with auto insurance.

Social and economic changes in Bulgaria are a continuous process of transformation of the way of thinking, attitudes and behavours towards an open society of liberty, free-market economy and democratic values. The political events at the end of the landmark year of 1989 and during the following months have given hope and expectancies to all the people for better life and prospective future. These transitions influenced in an unprecedented manner all sectors of the societal organisation as well as every single aspect of life, education, practice and professional endeavours. Undoubtedly, this socioeconomic process required a new vision for the development of the whole system of health care delivery, organisation and medical education. As a matter of fact, single hours of teaching medical ethics existed within the undergraduate curriculum of Social Medicine before 1989. Within such dynamic and challenging environment of the societal transition, however, a separate curriculum on medical ethics in Bulgarian medical schools was badly needed. At that time, the initial isolated attempts to introduce hours or short courses on medical ethics were lacking not only of infrastructure but also of a systematic, theoretically sound and evidence-based approach corresponding to the mainstream development of medical ethics and its education worldwide. On the other hand, the process of the health care reform, which was envisaged to start in the mid 90’s, required a synchronisation of the practice of medical ethics with the tendencies and practices in developed countries.

The process of introducing the education of Medical Ethics in medical schools as an indispensable part of the undergraduate medical curriculum started in the early 90’s. It was strengthened by the organisation of national and international meetings and conferences in Bulgaria as well as by the attendance of courses and exchange of experience on medical ethics in France, Germany, The Netherlands, etc. by our university professors and lecturers. One good example of such a new approach is the first introduction in mid 90’s of problem cases with the use of videofilms on medical ethics (as provided by the AMA and U.S. Air Force Reserve) during the practical sessions with medical students in Stara Zagora as lead by professors St. Markova, J. Marinova, S. Dimitrova and B. D. Dimitrov. This translational experience was later transferred to other medical schools in Bulgaria as supported by internationally recognised research activity (e.g., patients and the “coping” problem; physicians and the moral of medical profession; opinions and attitude of medical students,1 etc.). Some of the landmark events in the education of medical ethics have been summarised (see Table below), starting with the publication of the first handbook on medical ethics in Bulgarian language (see Figure below).2

The present curriculum for medical students and nurses is uniform among all medical schools and consists of general and specific parts. The general part includes topics such as “Principles and codes of medical ethics”, “Models of the relationships between doctors and patients”, “Patients’ rights”, etc. The special part includes ethical aspects of various practical issues such as “Problemsof reproduction”, “Problems of chronically-ill patients”, “Terminal care”, “Palliative care”, “Euthanasia and assisted suicide”, “Donors and transplantation”, “Biotechnologies and genetic screening”, etc. New modules are now being developed to complement the special part with such problematic and specific issues as health-related quality of life of patients, production and use of genetically-engineered cells and tissues (e.g., stem-cell research), benefits and drawbacks of the participation of patients in clinical trials, ethics of promotion of healthy products and providing health information or medical advice through Internet, etc.

The attitude of physicians and other allied-health professionals towards the education of medical ethics has improved considerably over the last years, as evidenced by the ever-increasing number of postgraduate courses and seminars on medical ethics all over the country. In this sense, the unbelievable interest to and attendance of the specialised postgraduate seminars on medical ethics, as lead by professors M. Ljochkova and B. D. Dimitrov (Plovdiv), by practicing nurses from the Higher Medical Institute, might be seen as one of the many good examples for the changing attitude of medical professionals towards the education and practical problems of medical ethics. For instance, the nurses were most active in debates on palliative care, euthanasia, shared decision-making at situations with terminally ill patients, etc. The problems with continued education on medical ethics are still related, however, to the lack of sufficient amounts of relevant periodic and review literature in Bulgarian language (or, e.g., translation of such from abroad) and of regular access to foreign periodicals (either through Internet or in a print version, or both).

A lawsuit filed Monday alleges that recent legislation capping medical malpractice awards is unconstitutional.

The law, which took effect Aug. 25, 2005, limits awards for pain, suffering and disability to $500,000 per doctor and $1 million per hospital. There are no limits for medical expenses.

The constitutional challenge is included in a malpractice suit involving a Chicago baby who was born with disabilities caused by a botched labor and delivery, said the child’s attorney, Jeffrey Goldberg.

‘WILL DRIVE DOCTORS FROM STATE’

Judy Cates, president of the Illinois Trial Lawyers Association, said, “Our legal system must provide justice for this innocent person and hold the responsible parties accountable.”

The Illinois Supreme Court has overturned previous caps two times. Illinois State Medical Society president Dr. Peter Eupierre warned that if the court also overturns the current cap, “It will drive doctors from the state and medical care costs will skyrocket.”

The United States is experiencing a health care problem that has yet to be solved by politicians, physicians, insurers, and other interest groups. Specifically, the medical profession is undergoing a medical liability crisis which, unfortunately, does not appear to have a resolution to its evolution. As the effects of medical liability continue to grow, medical schools and residency programs are also feeling the influences of liability risks.

Medical school graduates are required to participate in a hospital based residency program in order to certify in particular specialty or subspecialty areas. Successful completion of a residency program is a prerequisite for board certification in most specialties. The goal of graduate medical education or residency programs is to provide excellent training with an appropriate balance between educational and clinical areas of instruction. As residency programs educate and train their residents, they expose themselves to liability lawsuits brought by both patients and residents.

There are no specific United States Supreme Court holdings determining when residency program administrators are liable. However, the Accreditation Council for Graduate Medical Education (”ACGME”) residency program standards, as well as cases in various courts throughout the United States, set out a pattern of how courts should decide liability with regard to residency programs.

First, residents have filed claims alleging their graduate medical education administrators tortiously failed to provide adequate educational services (”educational malpractice”). Most educational malpractice suits are based on claims that the program’s education and training were insufficient or non-existent. Program administrators have successfully used the defense that there are national education policies and guidelines that residency programs must follow in order for the residents to be certified to practice. The courts have deemed these national policies, provided by the ACGME, valuable in determining whether administrators are liable for educational malpractice.1

Second, residents who were dismissed from programs or were not certified to practice medicine have filed breach of contract claims. ACGME policies require programs to sign contracts with residents. Some courts have held that residency program administrators are not liable for breach of contract claims if the program administration is following the ACGME policies and acting for academic purposes. The program administration can be liable, however, for breach of contract if the institution failed to fulfill a specific contractual commitment required by the ACGME.

Finally, students as well as patients have filed claims challenging the supervising and administration of routine policies and procedures created by the program administrators. When supervising and creating policies that the residents must follow, program administrators will not be held liable if they follow ACGME guidelines and set administrative standards that are reasonable. Only when the standards set by the residency administration are unreasonable, or when it is known by the administration that they are not being followed, can a program be held liable.

II. NATIONAL ACCREDITATION RESIDENCY PROGRAM STANDARDS

The ACGME is a private not-for-profit organization responsible for the accreditation of more than 7,800 post-medical degree training and educational programs within the United States.2 Completion of an accredited residency program is a prerequisite for primary board certification and for certification in the majority of subspecialty boards.3 Accreditation is essential for a program’s validity. It also serves as a national monitor. The ACGME establishes national standards for graduate medical education by which it approves and continually assesses educational programs under its sponsorship.4

Accreditation was developed to protect the interests of residents, benefit the public, and improve the quality of teaching, learning, research, and professional practice.5 In order to gain and maintain accreditation, residency programs are expected to comply with the program requirements for their specialty, and the institutions sponsoring them are expected to comply with a set of institutional requirements. Accreditation is accomplished through a peer review process and is based upon established standards and guidelines.6

A sponsoring institution and its ACGME-accredited programs must be in substantial compliance with the ACGME Manual of Policies and Procedures.7 The sponsoring institution is required to have a Graduate Medical Education Committee (”GMEC”) that bears the responsibility for monitoring and advising on all aspects of residency education. Voting membership on the committee must include residents nominated by their peers, appropriate program directors, and administrators. Voting membership may also include other members of the program faculty.8

There are two basic requirements regarding the general competencies that should be assessed by the ACGME: 1. “assurance that each program has developed a curriculum that incorporates the teaching of the competencies as specified in the specialty’s program requirements;” and 2. “assurance that each program is developing and using an assortment of evaluation tools to assess a resident’s competence in the various areas.”9 The strict and far-reaching regulations of ACGME’s residency programs help to defeat many claims brought by residents and patients against residency program administrators.10